Bench Memos

NRO’s home for judicial news and analysis.

Re: Ayotte


Ramesh: As I see it, the Court actually sidestepped both of the issues on which it granted review. The second issue you refer to (the so-called Salerno issue) was whether a plaintiff bringing a facial challenge to a statute regulating abortion must show that there is no set of circumstances under which the statute would be valid. Instead of addressing this threshold issue, the Court moved past it and recast it as a question of the appropriate judicial remedy available to a plaintiff who has shown that a statute has some unconstitutional applications. If the Court had delivered a victory to pro-lifers on the issue on which it granted review, it would have dismissed the case entirely (since the statute indisputably applies constitutionally in some circumstances — indeed, in all but “some very small percentage of cases” at most).

Why did the Court move past this issue? Perhaps because of the attraction of deciding the case on an easier ground. Perhaps because any resolution of this issue would seem inconsequential — if, that is, the United States was correct in maintaining that a plaintiff, in lieu of a facial challenge, could “seek declaratory or injunctive relief, in an individual or class action, on an as-applied basis before irreparable injury has actually been suffered — and obtain relief that reaches other, similarly situated individuals.”

The Court also sidestepped the other issue: whether the statute was required to contain an express health exception.

By the way, my comment that the Court “sidestepped” these issues is intended merely as a description, not as a criticism.


Subscribe to National Review